Taking Liberties and Rethinking Freedom — Special Roundtable on Civil Liberties One Year After 9/11

September 13, 2002

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This NOW With Bill Moyers episode examines the great changes in legal protections that occurred in the year following Sept. 11. The terrorist threat hanging over us is not going away, and the enemy is nowhere and anywhere. What does this mean for our peace of mind, our daily passages, our national purpose? Just how far do we go in striking a balance between liberty and security?

In the second segment, a panel of leading authorities from across the political spectrum talk about civil liberties in the post-9/11 era. The government has given itself broad new powers in the war against terror, while warnings of new threats keep us psychologically and constitutionally on edge. Are our homeland security policies protecting our democratic freedoms, or giving our government new ways to curtail our civil rights? You can access the original Web page for this program at the archived Now With Bill Moyers website.

TRANSCRIPT

MOYERS: Welcome to NOW.

America was on a high state of alert this week, and there are signs that’s likely to continue for some time to come.

The terrorist threat that hangs over us is not going away, and the enemy is nowhere and anywhere.

What does this mean for our peace of mind, our daily passages, and our national purpose? Tonight on NOW, we consider the subject of our personal freedom versus the public safety.

It’s not a philosophical question for the more than 1,000 muslim men who have been secretly jailed, many of them secretly deported without having been linked to terrorism.

It’s not just a philosophical matter for the rest of us either.

Our government’s claim of broad new powers to deal with terrorism puts america in a twilight zone.

My colleagues Kathleen Hughes and William Brangham produced our first report.

MOYERS: Six weeks after Sept. 11 and under siege from an anthrax attack, Congress was in a state of near panic when it hastily wrote and passed a sweeping new federal law. President Bush wasted no time in signing it.

GEORGE W BUSH (FROM TAPE): It is now my honor to sign into law the USA Patriot Act of 2001.

MOYERS: With little debate and even less dissent, the bill was intended to give the government new tools to strike back against terrorists and prevent terrorists from striking again.

Democrats and Republicans lined up shoulder to shoulder to approve the largest expansion of police powers in decades.

MOYERS: And not one member of Congress could be found who had read the bill in full.

BERT NEUBORNE, PROFESSOR, NEW YORK UNIVERSITY LAW SCHOOL: The conditions under which the Act was passed is probably the world’s worst way to make law. People were terrified. My guess is that not five people in Washington had actually read that Act from start to finish.

MOYERS: Burt Neuborne is a constitutional scholar at New York University Law School.

BERT NEUBORNE: And the language in the Act is so vague, that we still don’t really know what the limits of the government’s power are.

MOYERS: The Patriot Act is 342 pages long. People who have now read every page say that intentionally or not, it compromises some fundamental American rights…to free speech, to privacy, to due process.

VOLUNTEERS: Do you want to sing a petition, against the USA Patriot Act?

And here in the libraries, they are asking people to let them know what books you’re reading. They can sneak and peek into your house, tap your phones, tap email…

MARTY NATHAN, MD: If more people knew what their Congress had signed onto, I think that they would all be signing petitions.

MOYERS: These citizens in Northampton, Massachusetts are petitioning Congress to repair the damage and repeal provisions of the Patriot Act. Other groups across the country are doing the same.

Many influential conservatives have joined the chorus of protest, including the powerful House Majority Leader, Republican Dick Armey.

NPR INTERVIEWER: Are you saying that John Ashcroft has lost control?

REP. DICK ARMEY (R-TX): I think John Ashcroft has to take control of the Justice Department — he’s got some young smart alecks who’re just too taken with themselves, and the power they think they wield.

MOYERS: What alarms critics are provisions like this one – Section 213, commonly known as ‘Sneak and Peek.’ It enables federal agents to wait months before telling you they have secretly entered your home or office and searched everything in it. The suspected crime might not even be terrorism….

JONATHAN TURLEY, PROFESSOR CONSTITUTIONAL LAW, GEORGE WASHINGTON UNIVERSITY: Many of the changes that were made in the Patriot Act have precious little to do with the dangers that we saw on Sept. 11.

MOYERS: Jonathan Turley teaches Constitutional Law at George Washington University, and often writes about legal issues.

JONATHAN TURLEY: Many of those things are part of a wish list of intelligence agencies that they’ve wanted for decades.

MOYERS: One thing the intelligence agencies wanted — and got with the Patriot Act — is the so-called ‘magic lantern’…New computer surveillance technologies that can be used to monitor everything you write, read, or send from your computer. They don’t even have to come to your office or home to connect it. The secret software can be sent directly through the internet…without your knowing it.

BURT NEUBORNE: If I were going to grade the Patriot Act, I give it an “A” on delegation of power to the government. It delegates massive amounts of power. I give it an “F” on defining what those powers are.

MOYERS: Example: the Patriot Act creates the federal crime of ‘domestic terrorism.’ The ambiguous language has environmental groups and anti-abortion activists alike wondering if now, any dissent might be defined as terrorism.

JONATHAN TURLEY: What Congress struggled to do in the Patriot Act was to create ambiguous terms that can be used easily by prosecutors. And so we should not be surprised when FBI agents use it. The government has always used the full extent of their authority and more.

Both the FBI and CIA so abused their powers that in the 1970s Congress cracked down…imposing safeguards on spying against law-abiding citizens. Now, Attorney General Ashcroft says many of these reforms just made life easier for terrorists.

JOHN ASHCROFT, (FROM TAPE): America’s ability to detect and prevent terrorism has been undermined significantly by restrictions that limit the intelligence and law enforcement community’s access to and sharing of our most valuable resource in this new war on terrorism. That resource is information.

MOYERS: The FBI has been sharply criticized for failing to act before Sept. 11 on the information it did have about potential terrorists. Now, the attorney general and FBI Director Robert Meuller want to free the FBI to gather even more information to prevent future terror attacks.

ROBERT MUELLER III, FBI DIRECTOR: It is a substantial shift in understanding that our mission, our responsibility in the future is to prevent additional terrorist attacks in the United States.

JOHN ASHCROFT, TAPE FROM MEET THE PRESS: And if we’re going to prevent terrorist activity, it seems to me that we have to be in the community hearing things in advance. If we wait for a crime to be committed, to follow a lead about a crime, then the damage is done.

MOYERS: But here’s the rub. Preventing terrorism means stopping something before it happens. How much surveillance that will take, and of how many people, is anybody’s guess. The Justice Department said the old rules restricted them from doing basic monitoring — of mosques, for example, or on the internet. Critics worry these new guidelines will lead to another an era of spying on Americans.

JONATHAN TURLEY: And the question is it really going to be better in terms of law enforcement? There are some mosques that should be under surveillance, and have been under surveillance long before these reforms. But this is going to allow some agent in Boise, Idaho to decide that the local mosque must be the center of terrorism, and have someone sitting in there all the time.

MOYERS: But what most bugs critics right now is that congress, which passed the patriot act in the first place without knowing what was in it, now can’t find out how it’s being implemented. The administration won’t tell them.

ASHCROFT: I cannot and will not divulge information, nor do I believe that anyone ehre would wish me to divulge information that would damage the national security of the US, the safety of its citizens, or our efforts to ensure the same in an ongoing investigation.

MOYERS: To understand just how far the fight over secrecy has gone…you need look no further than right here.. Just a few floors above Attorney General Ashcroft’s own office. This is where the supersecret Foreign Intelligence Surveillance Court – known as FISA – meets. Federal agents come to FISA to obtain warrants that will let them investigate suspected foreign spies and terrorists without concern for the constitutional protections provided American citizens.

JONATHAN TURLEY: FISA is designed to circumvent the Fourth Amendment. It’s designed to allow searches to occur with less than probable cause. Now since probable cause isn’t a very high standard, it’s a standard that’s easily met, it’s a little bit chilling to think that you need a court to make sure you can operate below that standard.

But the interesting thing about the FISA Court is that it could not be used for law enforcement. It was solely for foreign intelligence gathering. And the idea was that even though these searches would violate the Fourth Amendment, they’re not being used against citizens for the purpose of prosecution. Well, that firewall is what just fell after 9/11.

MOYERS: The Patriot Act makes it easier for federal agents to obtain FISA court warrants against American citizens. Agents can conduct secret searches, obtain bank records, tap in to phones and computers, gather medical, student, and library records. All without having to show evidence of a crime. This would shred an American citizen’s Fourth Amendment protection against unreasonable search and seizure.

Nonetheless, Attorney General Ashcroft went to the FISA court this summer to broaden these powers even further — he wanted to use this information for criminal prosecutions against American citizens. The court said no.

JONATHAN TURLEY: They issued the first public opinion in their history. And these judges said that what was being asked of us was to allow this court to be used for law enforcement purposes, to allow prosecutors to have direct control of FISA investigations, and that presents a very serious threat to privacy. And we’re not gonna do it.

MOYERS: Ashcroft is appealing the court’s decision to FISA’s own secret appelate court. No civil liberty lawyers have been permitted to file briefs, and no members of Congress were permitted to attend.

BURT NEUBORNE: I often say that we treat our Constitution like a deck chair. It– in the sunny days, we take it out, and we sit in it. But in the rain, we fold it up and put it away, and we take it out later. The truth of the matter is, each time there’s been a crisis in our national history, we’ve tended to over-react. We’ve tended to do things that we felt very badly about later. But during the crisis, we simply did not live up to what the Constitution requires us to do.

MOYERS: That’s been the story from the Alien and Sedition Acts in the earliest days of the republic to Abraham Lincoln’s suspension of habeus corpus during the Civil War…From the violent crackdown on immigrants during the first World War to the imprisonment of Japanese Americans after Pearl Harbor.

So far the stretching of the Constitution since Sept. 11 hasn’t come close to those extremes, but what has critics worried is that the sweeping and often secret changes being made today will be with us for a long time to come.

BURT NEUBORNE: What’s different about this period, that really differentiates it from past periods, when the Constitution’s been bent, is that each of the past periods had a finite opening and a finite closing. The kind of threat that we face now, is open-ended from a time standpoint. International terrorism launched against us by ideologues. By small groups of ideologues. We’re never going to see the end of that. And so, unlike the past incidents, if we do damage to our Constitutional heritage now, it isn’t temporary damage. It’s– we’re not in a parenthesis, where we can just sort of make up special rules while we’re inside the parenthesis. This is going to be the way America lives– for our lifetimes, and our children’s lifetimes. And so the stakes, I think, may be higher than they’ve ever been before in keeping faith with our Constitutional heritage.

MOYERS: So much has happened so swiftly these days, it’s hard to keep up with all the new powers government is claiming.

The Associated Press has now published a summary that makes for uneasy reading. For instance, the government can now prosecute librarians for telling anyone information has been subpoenaed in a terror investigation. It can search and seize Americans’ papers and effects without cause and the new enemy combatant designation allows the government in secret with no oversight to jail anyone including Americans and hold them indefinitely without a trial.

Among the among the people alarmed by this are some federal judges who have already ruled that some of these new powers go too far. So much of this is sure to end up in the Supreme Court.

Every day seems to put on the line our established legal rights, as warnings of yet another terror threat keep us psychologically and constitutionally on edge.

We asked for some help on these issues from several people who deal with them in their work in law, politics, and national security. Here is our conversation.

NANCY CHANG, SENIOR LITIGATION ATTORNEY AT THE CENTER FOR CONSTITUTIONAL RIGHTS: The executive power is getting…accumulating a great deal of unsupervised unchecked powers through the USA Patriot Act and through a series of executive orders and interim rules it has issued since Sept. 11.

Surveillance is increasing and we have very little idea as to how the government is using those new powers. We know that over 1,000 people have been detained in the Sept. 11 investigation, yet none in that group has been charged with any terrorist related crime.

And I have concerns about the First Amendment and freedom of speech and whether speech is being chilled through comments such as Attorney General Ashcroft’s statement that those who criticize what the government is doing in terms of loss of civil liberties is aiding the terrorists.

MOYERS: So your particular concern is the growth of executive power?

NANCY CHANG: Unchecked executive power.

VICTORIA TOENSING, FORMER DEPUTY ASSISTANT ATTORNEY GENERAL OF THE CRIMINAL DIVISION AT THE US DEPARTMENT OF JUSTICE: I disagree with that. Now, I’m always concerned about the government having too much power; I worked for Barry Goldwater, after all, who was fundamentally a libertarian and always wanted to check governmental power. But he also believed in a very strong national security.

So I think when we discuss these issues we really ought to be careful that we don’t just put them all in one pile.

FRANK GAFFNEY, JR., FOUNDER AND PRESIDENT OF THE CENTER FOR SECURITY POLICY:I’ll tell you what worries me as a national security minded person, not a lawyer and certainly not a civil libertarian, though concerned about civil liberties I think as much as anybody here.

I think the government’s powers such as they are today are well within the realm of what we can live with as a democratic society so far removed from the police state as to make even the contention that this is a police state laughable, I think.

What we do need to be thinking about is additional powers of surveillance, of intrusive inspection of private property, what have you, that it has not sought, that it does not currently have but that it may well demand as a means of trying to protect public safety if something God forbid far worse than anything we’ve seen to date occurs in this country. That’s what worries me most.

ANTHONY ROMERO, DIRECTOR, AMERICAN CIVIL LIBERTIES UNION: But Frank, don’t we need to step back and ask a very threshold question, one that we haven’t yet asked as a country: how did Sept. 11 happen? Were our law enforcement and intelligence officials using their extensive law enforcement and intelligence powers to their fullest extent? And if not, why not?

It’s been very interesting watching most recently the announcements and the statements by Colleen Rowley, the FBI whistleblower who in fact very clearly in front of Congress in her memorandum to Robert Mueller the head of the FBI, clearly stated that they had probable cause of a crime, that in fact had FBI officials acted on their requests for warrants to search Zacarias Moussaoui’s home and computer, they might have been able to apprehend him. And who knows if they might have been able to stop the terrorist…

VICTORIA TOENSING: You know, that’s just poppycock…

ANTHONY ROMERO: …attacks of Sept. 11.

VICTORIA TOENSING: That’s just poppycock. I’m somebody that has sat at a desk and seen threats of terrorism come across her desk daily at the Justice Department in the 1980s when we were under…well, we thought, massive threat, but compared to Sept. 11, of course not.

It’s very difficult to figure out what’s going to happen when you see an intelligence person source says that tomorrow there may be some massive attack at the Paris airport and everyone should be under…

ANTHONY ROMERO: But Victoria…

VICTORIA TOENSING: No, I’m telling you you have never experienced this,

VICTORIA TOENSING: Rowley could had no idea anything that she got from Moussaoui computer as of today to have prevented that attack on Sept. 11.

ANTHONY ROMERO: A 21 year old veteran of the FBI.

FRANK GAFFNEY, JR.: Can I answer your question?

VICTORIA TOENSING: And those of us who have worked in this area know that.

ANTHONY ROMERO: A 21 year old veteran of the FBI who had the courage to stand up because she believed she had a patriotic duty to help government do its work in intelligence and law enforcement efforts.

VICTORIA TOENSING: I love it that the ACLU…

ANTHONY ROMERO: And for you to call her…absolutely. I’d wrap myself in the Colleen Rowley flag.

VICTORIA TOENSING: …is complaining that the government didn’t think it had probable cause and you thought it did.

ANTHONY ROMERO: And we have not asked ourselves the threshold questions.

DAVID KEENE, CHAIRMAN OF THE AMERICAN CONSERVATIVE UNION: Let me go back if I can in the post 9/11 atmosphere, and this may not be exactly how it happened, but this is how I viewed it, the President says to the Attorney General, what are we going to do?

The Attorney General says to the law enforcement agencies, what do we have to do? And they all say, we’ve got all this stuff on our shelves that we’ve never been able to get before. If you just give us all this, it will help.

And so they got it all — not just because of the Executive branch, but because Congress wanted to say to the Executive branch, we’ll give you that and we’ll trump it: we’ll give you even more power, because everybody…

MOYERS: This became the Patriot Act…

DAVID KEENE: …is panicked…

MOYERS: This became the Patriot Act.

DAVID KEENE: This became the Patriot Act. Now, some of it was clearly necessary. Some of it may not have been; some of it may have been questionable.

But I think when you approach this kind of a discussion you really do have two concerns: one, you have the society you’re trying to preserve, and two, you have the enemy that’s trying to destroy it. And your policies require you to find a way if at all possible to defend it without destroying it yourself.

MOYERS: Dave, that Patriot Act, that Patriot Act was passed with very little debate. It had no conference report, no committee report. I dare say most members of Congress didn’t know what was in it.

DAVID KEENE: No, they didn’t. They hadn’t read it, they…

FRANK GAFFNEY, JR.: But that’s standard practice unfortunately for everybody… It’s been properly framed. How did we get into this fix?

And I would argue that part of how we got into this fix, not all of it, but part of it was, we’re dealing with people who have studied our system, studied the limitations that have been imposed particularly since the seventies when thanks in no small measure to the ACLU we saw guidelines established that were restrictive.

MOYERS:What specifically do you think they saw in our society that invited them to make this effort?

FRANK GAFFNEY, JR.: They understood that if they operated out of mosques in this country they could operate virtually without…with impunity. There would be practically if not zero practically no surveillance by the FBI.

And when a Colleen Rowley complains that she’s not been able to get the requisite permissions, it’s in part because of the culture that’s been created which has said since the seventies, don’t go there. Don’t go there, that’s going to be racial profiling, or that’s going to be infringing upon the religious freedoms that people are allowed to enjoy here. And that I believe was understood to be an exploitable vulnerability and was exploited.

MOYERS: In other words, they read our Constitution and our Bill of Rights and…

MALE SPEAKER: They’ve watched our…many of them are sleepers in our country. They’ve been living in our country. They’ve been living in these mosques or going to the madrassas, seeing what the bureau can do. They’re not idiots, Bill. They’re working with intelligence operatives all over the world.

VICTORIA TOENSING: The 1993 World Trade Center bombing was hatched, plotted, carried out, from a mosque.

ANTHONY ROMERO: But Frank, the part of it that breaks down for me is that when you talk about the excesses of the seventies, you really have to go back to the excesses of the fifties. You have to go back to the excesses of J. Edgar Hoover and of the FBI…

FRANK GAFFNEY, JR.: No, I know, this is your theory.

ANTHONY ROMERO: …finish, and all the individuals and how they surveilled and how they perpetrated actions on civil rights leaders like Martin Luther King.

And it was only after the excesses of the FBI and law enforcement officials who went to any length to get their man, quote unquote, even good civil rights leaders, that then Frank Church and other members of Congress put in place oversight hearings to check those excesses…

CHRISTOPHER EDLEY, PROFESSOR, HARVARD UNIVERSITY, CO-DIRECTOR, THE CIVIL RIGHTS PROJECT: It is important to go back and really understand what the origins are of some of the safeguards that have been built into the system.

And we make a mistake if we ignore the fact that we do have a history of abuses by the Executive branch, that have called for the courts and Congress at various points to step in and rein them in.

The Frank Church investigations into COINTELPRO, the revelations about what the FBI did in spying on domestic civil rights advocates and domestic Vietnam war protesters. There’s a history there that’s very valuable when you ask the question, are there risks of abuse when it comes to keeping an eye on what’s going on in mosques?

DAVID KEENE: When you give…

ANTHONY ROMERO: We don’t want to go down that path again.

DAVID KEENE: When you give power to government — any government — there’s always the risk of abuse. That’s…

ANTHONY ROMERO: I agree, but…

DAVID KEENE: That’s the nature of government.

ANTHONY ROMERO: …that’s what…let me elaborate.

DAVID KEENE: And so you have to safeguard against that, but you don’t want to cripple government.

ANTHONY ROMERO: I agree, but then let’s ask the other question which seems to me is, who gets to decide what tools are needed? Right? And I think it’s very important that it not be the Executive branch alone that makes the decision. That’s what checks and balances are for.

MOYERS: This is a very important issue. The chief of Maryland State Police has said 9/11 woke us up to some things we need to know. And one thing we need to know, he said, is where every mosque in Maryland is.

Now, so clearly this is not a hypothetical question.

FRANK GAFFNEY, JR.: It is not a hypothetical question.

MOYERS: And why would you do this?

FRANK GAFFNEY, JR.,: I mean, I think on all of these questions, whether it’s racial profiling, whether it’s airport screening, whether it’s containers in ports, whether it’s mosques. You need to use some common sense and differentiate, prioritize.

Where I would start and it would for sure involve a lot of mosques are the mosques that have bene financed by the Saudi Arabian government and/or its various entities to promote precisely the kind of Wahhabist Islamist extremism that we’re worrying about in Afghanistan and Pakistan and Indonesia and the Philippines and a lot of other places, to say nothing of…

ANTHONY ROMERO: We have collapsed national origin and religion as a proxy for suspicion. And that is antithetical to the American values and the American way of life.

FRANK GAFFNEY, JR.: Let me explain what I just said. What I said is there is a sect of Islam, not all of the Muslim world, a sect of Islam, which is one of the things we’ve learned since 9/11 which has been aggressively pursuing not only elsewhere in the world, the Muslim world and many places beyond, but in our own country, a virulently anti American and violent pedagogy and operational practice.

And this is giving rise I believe to a mortal threat to American citizens. That has to be addressed as a national security matter not by going after every Muslim, not even by going after every mosque, but by starting with mosques for purposes of surveillance that you have reason to suspect as a result of their direct financial or other ties to this Wahhabism well…web may be part of this mortal peril to our country.

ANTHONY ROMERO: To bring it down to…to bring it down on the ground to people living in communities, connect the dots, connect the fact that government announced efforts to interrogate 5,000 and then 3,000 young muslim Arab men between the ages of 18 and 33, picked merely based on their ages and their countries of origin…

Connect the dot then again to the 1,200 plus immigrants who Nancy described as being apprehended and detained and summarily deported out of…after 9/11. Connect the dots once again with the efforts to fingerprint and photograph only immigrants from Arab and Muslim countries. You create in all of those efforts, notwithstanding the rhetoric of the Bush administration, you create a palpable fear, of xenophobia, of concern, where individuals in those communities are afraid to even contest parking tickets.

CHRISTOPHER EDLEY: I’m a member of the US Commission on Civil Rights. And we’ve had a couple of hearings on this issue, most recently in Detroit. And we heard from several Muslim Americans, several representatives of Arab American. They feel under assault.

ROMERO: Exactly.

CHRISTOPHER EDLEY: They feel like their community is under assault, the charities that they go to, they’re worried about what kind of surveillance may be going on in their mosques. They’re worried about any kind of social gatherings and what’s going on. That is not what our country ought to be about. If…

Wait a minute. Wait a minute. Wait, Frank, wait…

FRANK GAFFNEY, JR.: The ones that are screaming most loudly are the ones that have greatest reason to fear.

CHRISTOPHER EDLEY: If they…no, that’s exactly wrong.

FRANK GAFFNEY, JR.: It is exactly right.

CHRISTOPHER EDLEY: If there are intelligence driven, intelligence driven criteria, if there are evidentiary thresholds that have to be established, if indeed it is based upon, here’s a group of people, they espouse violence… …and we have intelligence information linking them to this place and linking them to that place, that seems to me completely a different situation and I’m very sympathetic to the needs for aggressive law enforcement there.

MOYERS: After the terrorist attack on the Federal center in Oklahoma City by Timothy McVeigh, were the militia groups in the west and northwest justified in feeling as if they were being singled out for surveillance.

CHRISTOPHER EDLEY: There’s a difference between heightening your scrutiny of militia groups given what they’ve embraced versus heightening your scrutiny of any group that has challenged government authority…

DAVID KEENE: When we’re talking about Wahhabist Islamists. We’re talking about a group who has espoused and has embraced something as violent as any militia man ever could dream.

MALE SPEAKER: I agree.

CHRISTOPHER EDLEY: This is actually the fear that animates me most, what I’m most worried about now, is let’s just assume that we adopted a requirement that we’re really going to focus on Wahhabism, that we’re really going to focus on some narrowly defined intelligence driven group of actors in particular communities…

DAVID KEENE: And I’m not saying you should outlaw it, I’m saying you should keep an eye on it.

CHRISTOPHER EDLEY: How do we know…how do we know that that safeguard, that that factual predicate, is in fact, is in fact being followed by all of the intelligence and law enforcement agencies?

DAVID KEENE: You never know that.

CHRISTOPHER EDLEY: Well, that seems to me to be dangerous.

FRANK GAFFNEY, JR.: There’s an example of just how far…

CHRISTOPHER EDLEY: That’s why you need the checks and balances of…

FRANK GAFFNEY, JR.: …backwards we’re leaning right now. Just to give you one example. The director of the FBI went to the national convention of the American Muslim Council, an organization that I would submit fits the profile you just talked about.

Its leaders have in the past and I believe even today espoused groups and activities that we describe as terrorist, that are on our state sponsored list of terror or the State Department’s list of terrorist organizations or both.

This guy not only went to that group as part of this outreach effort to the Muslim community to demonstrate precisely I think what has frankly been a politically correct view that we need to assure this community that none of their members, none of their members are by definition problematic.

And yet that’s how we’re behaving not that we’re intrusively in a police state kind of search sweeping up all the Muslims.

CHRISTOPHER EDLEY: Look, I say this with heavy heart. You sound to me like J. Edgar Hoover sweeping up every civil rights leader saying that they’re all potential terrorists…

FRANK GAFFNEY, JR.: I’m glad you find it hard to say that because it’s so factually untrue.

DAVID KEENE: I think this is something that policy makers and perhaps we have to wrestle with. It’s one of the reasons that the FBI I think had a problem aside from the analysis of intelligence information prior to 9/11.

Our law enforcement agencies have historically, particularly the FBI and others, been set up to apprehend and prosecute criminals for criminal acts that have taken place. To defend the society against terrorism, you’re attempting to prevent acts that haven’t taken place — which seems to me to be a much more difficult thing. In the case of the FBI a lot of the abuses that we know about institutionally are, they’ll let things take place so they can prosecute in some instances.

Clearly if we had information that there was an atomic device some place in Manhattan…

MALE SPEAKER: Yes.

DAVID KEENE: …and that information was hard but we didn’t know where it was, that would justify a level of looking for it that we wouldn’t tolerate if we didn’t think it was…if we didn’t have that information. Now, that’s a very hard kind of case.

MOYERS: If you had…if you had really good reason to believe that that suspect knew the people who had that bomb that had not yet been planted…

DAVID KEENE: What would you do?

MOYERS: …would you torture him?

DAVID KEENE: I mean, that’s an…I wouldn’t, but that’s…I mean, that’s a time…that’s an ethical question.

VICTORIA TOENSING: Not with sodium pentothal, I mean, torture doesn’t always get the…

DAVID KEENE: Yes, I mean, there are degrees, but that’s the question I’m getting to. And that is, is there a difference between society when you’re trying to apprehend and punish criminals — bank robbers or whoever they may be — and one where your goal is to prevent the kind of thing that Frank is talking about…

VICTORIA TOENSING: Yes.

DAVID KEENE: There is a difference.

VICTORIA TOENSING: And that’s the whole issue here because…

DAVID KEENE: That’s what I’m trying to frame.

VICTORIA TOENSING: …what happened on Sept. 11 was not a crime.

DAVID KEENE: Right.

VICTORIA TOENSING: It was…and not wasn’t even an act of war. It was an illegal act of war by people who are still alive and able with thousands of cells across the world to continue to pursue us.

DAVID KEENE: Right.

VICTORIA TOENSING: And what do you do? Because I spent so many years in law enforcement, and I brought I thought civility to terrorism in the 1980s we were going to pursue terrorist wherever they may go, said Ronald Reagan…

DAVID KEENE: Right.

VICTORIA TOENSING: You can run but you can’t hide. And we will bring them back to answer in United States courts.

And now we have a situation where bringing them back into our Federal court system actually shuts them up — John Walker Lynd of course quit talking about anything and his lawyers were getting information on our intelligence until he pleaded guilty. The court had ordered our intelligence agencies to give him intelligence information so he could defend his case. He wasn’t a rich deposit of intelligence information that we needed so it mattered not in that situation. But with many people it does matter. And how do we address that?

ANTHONY ROMERO: I’m amazed you have such little faith in our courts. In fact…

VICTORIA TOENSING: I have good faith in our courts. I’d say there’s…

ANTHONY ROMERO: Well, it doesn’t sound that way. In fact, we have used our courts to prosecute terrorists successfully. You’ve done so. You’ve had an illustrious career prosecuting terrorists.

VICTORIA TOENSING: I absolutely have but…

ANTHONY ROMERO: And you have been able to do so.

VICTORIA TOENSING: …prevention was not the priority.

ANTHONY ROMERO: You’ve been able to focus on the World Trade…

VICTORIA TOENSING: And that’s our new challenge.

ANTHONY ROMERO: …Center.

MOYERS: What was the priority? What was the priority?

VICTORIA TOENSING: Oh, prosecution.

MOYERS: Prosecution, of the people who had committed the…

VICTORIA TOENSING: Of the [people], the perpetrators, right.

MOYERS: Okay, but…

ANTHONY ROMERO: And to now say that our courts are an inconvenient obstacle on the war on terrorism…

VICTORIA TOENSING: I [didn’t] say they’re inconvenient, I say they…

ANTHONY ROMERO: …that sounds very much [what] you’re saying.

VICTORIA TOENSING: …interfere with our goal of prevention…

ANTHONY ROMERO: They are the bulwarks of our democracy.

VICTORIA TOENSING: …and that’s our challenge.

MOYERS: The Patriot Act includes the so-called sneak and peek searches, what we used to call the old black bag job. You know, the FBI according to this interpretation can sneak into an office or a home without a warrant, without judicial approval, without judicial oversight, examine Frank Gaffney’s computer, examine the records in your office, perhaps because you were seen talking to some people who…

DAVID KEENE: That’s not precisely right…

ANTHONY ROMERO: They would need a warrant…

DAVID KEENE: What’s right is that sneak and peek allows a…you get a warrant but you don’t tell Victoria you’ve been in her house…

FRANK GAFFNEY, JR.: Until after the fact.

MOYERS: Until 90 days after.

FRANK GAFFNEY, JR.: Delayed notification.

MOYERS: Does it concern you that the FBI can come into your office, Frank

FRANK GAFFNEY, JR.: If you have the faith in the court system. I actually have more faith in our Executive branch than some of our colleagues here. But if you certainly place your trust in the court system, the fact that you are requiring warrants and you’re putting the evidence for those warrants before a judge, I would think would satisfy [INAUDIBLE].

NANCY CHANG: The Patriot Act that perhaps is most out there is on surveillance anyway, a Section 215 that actually allows the government in the course of a terrorism investigation to go after materials held by third parties: airlines, trains, hotels, car rental companies, libraries, and obtain a broad sweep of information concerning people who may have absolutely nothing to do with terrorism.

MOYERS: Explain that.

NANCY CHANG: The provision may allow, for example, a subpoena or a court order to be served on a library for all patrons who took out a book on…

MOYERS: Islam.

NANCY CHANG: …Islam. And this is…this has very disturbing implications for our privacy I think between the changes in the Patriot Act and changes in technology.

We’ve seen the end of privacy. I think that regular Americans who have absolutely nothing to do with terrorism will find themselves more and more the subject of data mining. Private companies maintain information for marketing purposes and that information we’ve heard from the Attorney General’s new guidelines is going to more likely be mined for profiles.

VICTORIA TOENSING: Let me ask a question about this kind of an investigation using something else, because we’ve had the anthrax scare and we’ve had people die from Anthrax. If we pinpoint a certain community, if the FBI went into the library to see if anybody checked out books on how to make Anthrax mailable — you know, put it into a powder form — would you be against that?

NANCY CHANG: I find it incredibly chilling to think that one’s reading habits are going to be surveilled by the government. I find that very chilling.

MOYERS: Checking out of Anthrax, but checking to see who checked out an Anthrax book is one thing, but what about checking to see who has been reading environmental books? That is not a theoretical question.

The Justice Department has ordered a county by county assessment of potential terrorist threats. And one of the creators of that program says, this can include environmentalists. Now, isn’t that moving your line way over in the other direction?

FRANK GAFFNEY, JR.: Well, I can’t attest to even the accuracy of what you just said let alone the validity of the argument that’s being made by the guy who’s supposedly advancing it. All I can tell you…

VICTORIA TOENSING: I’ve never heard of that program.

DAVID KEENE: In fact I talked to one of the people who was in the meeting right after 9/11. This goes back to the whole way in which these things get adopted.

And somebody said, you know, for crime we’ve got this neighborhood watch. Somebody said, we ought to do that. And pretty soon you had the TIPS program, which is going to turn everybody into sort of a Cuban style block spy on everybody else where you had your cable guy come in…right.

MOYERS: Give us your understanding and see if anybody differs with operation TIPS.

ANTHONY ROMERO: The Terrorism Information Prevention System. A program announced by the attorney general and the Justice Department to involve the cable and utility workers, to involve truckers, to involve the UPS man…

DAVID KEENE: Postal workers.

ANTHONY ROMERO: …to postal workers and shippers, to be able to identify suspicious activity in their neighborhoods that might lead to the terrorism investigations.

DAVID KEENE: Well, Congress because of Dick Armey who unfortunately is retiring said…

MOYERS: The Congressman from Texas.

DAVID KEENE: From Texas, said, no. And they told the Justice Department, you can’t do this. And probably by that point a lot of the people in the Justice Department were saying to themselves, that was really a wacky idea.

And the point being that in the time of crisis and chaos wacky ideas don’t sound wacky. And that’s what…

VICTORIA TOENSING: Wait a minute, … wacky, let’s just look at it from another perspective. Let me just look at it from another prism. What is wacky about asking the community, particularly people in a certain profession like the truckers, to report what they see as suspicious when…

MALE SPEAKER: It’s a vigilante …

VICTORIA TOENSING: Wait, we’re talking about…stop. When a child is abducted in California, they go on the Amber Alert and they say to people, look out for this car with this license plate. And we ask the community to come forward…

DAVID KEENE: If you have…that’s a different thing, Victoria. That’s a very different thing.

FRANK GAFFNEY, JR.: In a time of emergency, people are going to do it whether they have been instructed to do it, whether there’s a plan for them to do it or not.

We’re in a time of emergency. We ought to plan, we ought to facilitate this inflow of communications. I’m told right now the direct line that you could call for operation TIPS takes you to America’s Most Wanted. Well, come on!

MOYERS: The FBI was urging people who had information about suspects to call directly the television show…

VICTORIA TOENSING: Because they don’t have a central number…they’re not allowed to have it.

MOYERS: No, but that’s how far it can go if you let it go.

ANTHONY ROMERO: This brings me back to the bigger question. If much of what we’re allowing to happen now in the name of the war on terrorism is supposed to make us safer, we have to really ask the question, is it effective?

If one of the major issues that happened after 9/11 was the fact that government could not process all of the extensive information it had at its fingertips, they couldn’t even translate cables that were coming through in foreign languages, how is making the haystack bigger going to help us find that needle?

DAVID KEENE: Let’s back up a second, because the point that Victoria made using the California analogy, in that instance you have something very specific. If you see this, report it. That’s obviously unarguably a good idea, and people would do it as long as they know that you’re looking for X.

VICTORIA TOENSING: You could also describe that as people being snitches and get people, you know…

ANTHONY ROMERO: You could describe, but what…

VICTORIA TOENSING: I wouldn’t.

ANTHONY ROMERO: I wouldn’t, either. But my point is…but my point is that is not the same as saying to a million people, you know, you see anything suspicious give us a holler.

FRANK GAFFNEY, JR.: Right.

VICTORIA TOENSING: In your industry. For example, a trucker at the border…

ANTHONY ROMERO: How are they trained, Victoria? How is my UPS man trained to know whether or not the package I’m receiving from a Muslim group at the ACLU office…

MOYERS: I was just reading yesterday that within a few months the police in Washington will have the capacity…they will have 1,000 surveillance….

MALE SPEAKER: Cameras.

MOYERS: …cameras all over the city looking at the schools, the transit system, the Federal…

MALE SPEAKER: Traffic lights.

MOYERS: Traffic lights, and they’ll feed all of this information to a central command, that with these cameras they will be able to track automobiles, get license plates, read that letter you’re reading in your hand

I mean, I’m wondering who will monitor these tapes, who will have access to these tapes, and what happens to these tapes if they ever want to get rid of them? Are you in any way concerned as a resident of the nation’s capital about a tent of surveillance over your daily activities?

FRANK GAFFNEY, JR.: I am somewhat concerned, just as I’m concerned, as I said from the beginning here, about infringements on our civil liberties going too far. That particular scenario that you described, if in fact the thousand cameras, thousand points of light comes to mind for some reason, but a thousand cameras were in fact providing complete omniscient surveillance, and, you ask what’s going to happen to these tapes? My guess is they’re going to be rerecorded, are going to record over [INAUDIBLE].

DAVID KEENE: We have experience with this.

FRANK GAFFNEY, JR.: But the point is if it went to that extreme, that would seem to me at the present moment unwarranted. But what worries me, just to go back to the beginning is, I can see people demanding that kind of surveillance if we find ourselves as a result of a breakdown in the aftermath of some cataclysmic attack on this country.

DAVID KEENE: They may disband it, but we do have some experience with this in London.

ANTHONY ROMERO: That’s right. That’s right.

DAVID KEENE: The average Londoner today can be expected to be photographed three to five hundred times a day by cameras that are placed all over the city.

MOYERS: 150,000 cameras in London alone, two and a half million in all of England.

DAVID KEENE: They were put there for two reasons. They were put there to stop violent crime and terrorism, both of which have gone up since they were installed.

MALE SPEAKER: Exactly.

DAVID KEENE: And in fact, there is now, and I think most psychology is goofy, but the fact is there are now psychological studies that the British people are getting this feeling that they can’t go anywhere…

NANCY CHANG: Big Brother is watching.

DAVID KEENE: That they’re being watched. Well, there’s a reason for that: they are being watched.

And it would be…there’d be so much information as a practical matter that you couldn’t do much with it, but also as a practical matter, there are abuses.

MALE SPEAKER: Yes. CHRISTOPHER EDLEY: This debate is as old as the nation. Right? And the question is, in my mind, how do you create a set of institutions and a conversation so that in fact this debate, which is never going to be resolved, continues in a healthy way and that we make adjustments, we make refinements, in all of the ways in which we’re striking a balance today, which may shift one way or the other over time.

So I think one thing that we ought to be doing as Congress creates the Homeland Security Act, is amending that bill and creating in that legislation some kind of a special inspector general that would be able to very carefully…

Well, it’s not strong enough in the House bill. It’s not strong enough in the House bill. There needs to be, under all the appropriate security classifications, there need to be a mechanism to a) make sure the public knows what the policies are, and b) that the policies are being complied with and to make appropriate reports to the Congress and to the…

MOYERS: Some of you have been in government, and the best of intentions by both Congress and the Executive always get carried into the dark by intelligence agencies to become perverse and grotesque violations of what was intended.

FRANK GAFFNEY, JR: It is matters of judgment, it is matters of balance, it is matters of cost effectiveness and limits on civil liberties. And we’re going to make these judgments collectively.

DAVID KEENE: The reason you want to give the government only the power that’s necessary is because that will always happen not just in the intelligence agency, it happens in the Department of Agriculture, and HEW and the State Transportation Agency. It’s the nature of government.

FRANK GAFFNEY, JR.: Our public wants the government to protect them from these threats. And where the government comes to them and says, look, I can’t tell you that this is absolutely necessary in the sense that it’s been used here that it will prevent things from happening. But it can help us do our job. The question is going to recur, at what cost?

DAVID KEENE: How much help? Right.

ANTHONY ROMERO: That’s why for me the third piece of this, you’re exactly right, the system of checks and balances is essential. Secrecy is problematic because it needs to be visible to the people. And then you need debate. You need robust and open debate.

MALE SPEAKER: We sure have that.

ANTHONY ROMERO: And we have not had it. After 9/11 so many members of Congress…

DAVID KEENE: Not in the Congress, but we’re having it.

ANTHONY ROMERO: We’re having it here — where is so refreshing. This is…

MOYERS: …the press is not asking these questions because we’re afraid of being called unpatriotic.

ANTHONY ROMERO: The reason why we have not had debate as fully as we’ve liked is because the American public is looking to its leadership, which is often afraid to lead. They’re afraid of asking questions of the government like the ones you’ve asked.

They’re afraid of being termed as un-America or unpatriotic. We’ve heard that from members of Congress. You’ve also heard the words of our attorney general who was rather clear when he was in front of the Senate Judiciary Committee when he said that anyone who would conjure up the phantoms of liberty — here I paraphrase; elsewhere I will quote. He said, anyone who conjurs up the phantoms of liberty will give ammunition to our enemies, pause to our allies and diminish our national resolve.

DAVID KEENE: And government … and we ignore it.

ANTHONY ROMERO: He held the sword of Damocles over the heads of the Senate Judiciary Committee and they just said, you’re with me…

VICTORIA TOENSING: Oh, they all trembled. I can just see them shaking.

ANTHONY ROMERO: They did not ask a question. They backed off. They didn’t ask him the questions they needed to.

MOYERS: If you think that the terrorist threat, which is different from anything we’ve experienced in my lifetime, does cause you to concede to national security.

NANCY CHANG: I think we can still do this within the paradigm of the Fourth Amendment…

MOYERS: Which says…

NANCY CHANG: Basically that…requires reasonableness in the invasion of privacy in the case of searches and seizures. And it looks at the totality of circumstances.

I think it’s a very flexible test that the framers of our Constitution created. It adapts to the times. And when times are more dangerous, what is reasonable may change.

MOYERS: The standard of reasonableness have changed because of the war on terrorism, haven’t they? Since 9/11?

NANCY CHANG: Yes, but what I’m concerned about is that we’re not staying within the confines of the Fourth Amendment. We have in the Patriot Act a provision that expands the use of the foreign intelligence surveillance act which is outside the Fourth Amendment paradigm.

So what we have now is an expansion of the use of foreign intelligence surveillance standards which were dropped very, very low, and, don’t require any attachment to evidence of crime. And that troubles me greatly.

ANTHONY ROMERO: So much of what Nancy has just described, that’s happened after the USA Patriot Act, if you’ve eviscerated this firewall between foreign intelligence and domestic criminal investigations. That’s our concern as civil libertarians, because it can blur…

FRANK GAFFNEY, JR.: Our concern as National Security people is our enemies understood that firewall and took advantage of it. And moving it now has been critical I think to adapting to, as we’ve been talking about, a very different environment not only an environment geo strategically, but an environment technologically.

This is updating it and I think there’s still some loopholes in it, frankly, that make it less effective than it should be.

VICTORIA TOENSING: And we’re not saying remove it entirely, but we’re saying you have to do a reasonable movement in consideration of what our goal is today, which is prevention of the next attack.

MOYERS: Have any of you been so shaken by 9/11 that you have found yourself surprisingly abandoning ideas you once held and positions you once [state], have you changed anything because of that, that makes you wonder?

FRANK GAFFNEY, JR.: I must tell you, I have bene reinforced in most of the things that I’ve been worrying about or working on for decades. And the reality is that then as now, in the pre Sept. 11 period, there was evidence that this sort of thing was afoot. There were attacks on Americans, on America interests and so on.

I believe we did not avail ourselves as fully as we could have and needed to of sensible adjustments in our national security powers to prevent 9/11. We may not have been able to prevent it, we may have been able to reduce it, we may have been able through better use of these and other good government activities to prevent not only this incident but several of the previous ones.

ANTHONY ROMERO: I was on the job one week when Sept. 11 happened. And in a lot of respects as a new head of the ACLU, Sept. 11 brought me right back to my roots: …the roots of the organization, borne out of the Palmer Raids, borne out of the fight to oppose interment of Japanese Americans.

DAVID KEENE: …agreed with J. Edgar Hoover.

ANTHONY ROMERO: That’s when we fought the whole interment of the Japanese Americans on the Western coast.

And this is a time more than ever when even though and the hate mail pours in, and I get phone calls to my house telling me to go back to my country, that I am even more reaffirmed — which would be the Bronx or Puerto Rico, depending on how you would view that…

That now more than ever I am reaffirmed in the sense that what really is at stake is the content and character of our democracy, and that although unpopular and difficult issues that we’re really fighting for core America values that we can all subscribe to. And so no, in some ways it brings me right back to the same set of concerns we always had.

CHRISTOPHER EDLEY: I’d say that I’ve been discouraged by the disparagement of civil rights and civil liberties concerns that I’ve heard from a lot of quarters. I think that the…for example, prior…. On September 10th there was a bipartisan consensus that racial profiling was a bad idea.

But on September 12th, suddenly there’s an enormous sentiment that, well, maybe racial profiling isn’t such a bad idea in certain circumstances. That I find dismaying.

CHRISTOPHER EDLEY: I think I’m more willing to recognize the risk of the horrible hypothetical today than I was prior to 9/11. But my solution to that is not to say, let the government stamp secret on everything, let everything be done behind closed doors.

But rather, to try to figure out…a lawyerly way to try to figure out some checks and balances And we’ve got to be willing, it seems to me, to press for those while giving national security interests their due.

NARRATOR: And now a look at stories coming up on NPR radio.

LIANE HANSEN: Hi, I’m Liane Hansen from NPR News.

Join me on the radio this Sunday for WEEKEND EDITION when we’ll explore how American attitudes toward military first strikes have evolved since the Revolutionary War.

We have a writer who reflects on a critical year in her life. When she was 13 she moved from Puerto Rico to New York. Her memoir from that time, ALMOST A WOMAN, is now a film.

Look for your local public radio station on our web site, npr.org.

MOYERS: My colleague was in the subway below the World Trade Center when the first plane hit at 8:46 on Sept. 11 a year ago. She walked up the stairs to the street just as the second plane hit. She heard the boom, looked up at the flaming towers, saw falling bodies — and shuddered. A wave of heat descended on her and she ran – ran to safety before the buildings came down.

For two months she sat at the window of her apartment, paralyzed by fear. The sound of a plane would take her back to that day, as if had been the beginning of the world coming to an end. A year later she still has nightmares, still sees – in the poet’s prophetic metaphor – “the great dark birds of history” that plunged into our lives.

She’s not alone. No matter where we live today, we live at ground zero. Sitting at our window we wonder what’s next; we walk looking over our shoulder, nervously. This is what terrorists want. They aim to possess our psyche, pillage our peace of mind, deprive us of trust and confidence – and keep us from ever again believing in a safe, decent, or just world, from working to bring it about. This is their real target – to turn each and every imagination into a personal Afghanistan, a private hell, where they can rule by fear, as the Taliban did.

They win only if we let them; only if we become like them: vengeful, imperious, intolerant, paranoid, invoking a God of wrath. Having lost faith in themselves, they have nothing left but a holy cause. They win, if we become holy warriors, too; if in trying to save democracy, we destroy it; if we strike first, murdering innocent people as they did; if we show contempt for how others see us; exploit patriotism to increase privilege; confuse power for the law, secrecy for security; and if we permit our leaders to use our fear of terrorism to make us afraid of the truth.

What, then, can I say to my colleague, to myself, to all of us who survivors, tempted to keep sitting there, in the chair by the window. Just this: we are vulnerable – not only to the fear of them but to our own shaken faith. And this, remember not only the terror but the beauty revealed that day — when through the smoke and fire we glimpsed the humankindness – the heroism, sacrifice, and compassion – of ordinary people who did the best of things in the worst of times. I say — this beauty in us is real. It makes democracy possible, and no terrorist can take it from us. Remembering this, one year later, we can praise the mutilated world and get on with our work. Democracy is our work, and there is much to do – if we are to keep it. For NOW, I’m Bill Moyers.

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